I was reading some of the CA penal code looking for DUI penalties, long story but I'm making a series of videos showing what crazy things are not legal in contrast with what is, as well as penalties for things that are just not appropriate (ie. DUI manslaughter and your max penalty is $1,000 fine granted more years in prison than the following but if copy a DVD you're looking at possibly 5 years and $500,000)

Anyway... saw this

Quote:

CALIFORNIA CODES
PENAL CODE
SECTION 187-199

197. Homicide is also justifiable when committed by any person in
any of the following cases:
1. When resisting any attempt to murder any person, or to commit a
felony, or to do some great bodily injury upon any person; or,
2. When committed in defense of habitation, property, or person,
against one who manifestly intends or endeavors, by violence or
surprise, to commit a felony, or against one who manifestly intends
and endeavors, in a violent, riotous or tumultuous manner, to enter
the habitation of another for the purpose of offering violence to any
person therein; or,

Sounds like the Texas law, but we just don't actually uphold it?

jl123

07-20-2011 7:26 PM

Quote:

Originally Posted by tonb
(Post 6809094)

I was reading some of the CA penal code looking for DUI penalties, long story but I'm making a series of videos showing what crazy things are not legal in contrast with what is, as well as penalties for things that are just not appropriate (ie. DUI manslaughter and your max penalty is $1,000 fine granted more years in prison than the following but if copy a DVD you're looking at possibly 5 years and $500,000)

Anyway... saw this

Sounds like the Texas law, but we just don't actually uphold it?

You can't be held criminally liable in CA for shooting someone if you are in reasonable fear for your life (ie someone is in your house), but we are not offered protections against cases brought in civil court (lawsuits).

Basically you can shoot a guy in your house (without trying to retreat) and the cops would be fine with it (in theory), but the scum bag's family could sue you. even if you win, it could get expensive.

Grumpyoldretiredcop

07-20-2011 7:37 PM

Statute law is tempered by case law. Research the case law on the subject and you'll get a feel for how the statute is "upheld" here in the People's Republik.

sandman21

07-20-2011 7:49 PM

You can defend property……

From jury instructions

3476. Right to Defend Real or Personal Property

The owner [or possessor] of (real/ [or] personal) property may use reasonable force to protect that property from imminent harm. [A person may also use reasonable force to protect the property of a (family member/guest/master/servant/ward) from immediate harm.]

Reasonable force means the amount of force that a reasonable person in the same situation would believe is necessary to protect the property from imminent harm.

When deciding whether the defendant used reasonable force, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant’s beliefs were reasonable, the danger does not need to have actually existed.

The People have the burden of proving beyond a reasonable doubt that the defendant used more force than was reasonable to protect property from imminent harm. If the People have not met this burden, you must find the defendant not guilty of <insert crime>.

So what you're saying is, if someone tried to steal my corn flakes I can shoot them as long as it's in the leg?

Seriously though, some of our laws are pretty bass ackwards.

jl123

07-20-2011 8:36 PM

Quote:

Originally Posted by monk
(Post 6809625)

So what you're saying is, if someone tried to steal my corn flakes I can shoot them as long as it's in the leg?

Seriously though, some of our laws are pretty bass ackwards.

If they're in your hose in the middle of the night, it is reasonable to assume your life is in danger. Fire away IMO.

spalterego

07-21-2011 8:33 AM

Quote:

Originally Posted by jl123
(Post 6809642)

If they're in your hose in the middle of the night, it is reasonable to assume your life is in danger. Fire away IMO.

If they are in your "hose" in the middle of the night, I suggest calling a urologist.

scarville

07-21-2011 8:55 AM

Quote:

Originally Posted by jl123
(Post 6809642)

If they're in your hose in the middle of the night, it is reasonable to assume your life is in danger. Fire away IMO.

Anyone besides me wearing my socks in the middle of the night had damn well better be my wife or daughter.

SkatinJJ

07-21-2011 7:58 PM

Quote:

Originally Posted by spalterego
(Post 6812127)

If they are in your "hose" in the middle of the night, I suggest calling a urologist.

Welcome to CalGuns! Have more fun like that. /\ /\ /\ :p

Semper Fi!!!

JJ

Overbear

07-22-2011 6:45 AM

The whole key in this state is "resonable person" so it comes down to, what part of the state your in. If you are in SF, a "resonable person" would get up, fix the intruder a meal, ask him/her if they need extra cash, and set up a trust fund for them, then invite them to come live with them. /sarcasm

r3dn3ck

07-22-2011 7:17 AM

giggity. thanks overbear. Needed a grin first thing.

Sailormilan2

07-22-2011 7:26 AM

Quote:

Originally Posted by scarville
(Post 6812213)

Anyone besides me wearing my socks in the middle of the night had damn well better be my wife or daughter.

What was it that Groucho Marxs said? "While on safari I once shot a lion in my pajamas. What he was doing in my pajamas I will never know."

Vipersx911

07-22-2011 10:09 AM

Now how would an argument such as justifiable homicide compare if it were in a state that had "Castle Doctrine"?

Sent from my Droid using Tapatalkn

BigDogatPlay

07-22-2011 11:34 AM

The statute combined with the jury instruction, and the case law, make the case IMO that California already has close to a Castle Doctrine. It's just not called that. The key element, particularly in the jury instruction, is the test of reasonableness. Was the level of force reasonable to overcome the scale of the threat to life and limb.

A person can use lethal force to defend their property under the law. But if it's the town drunk on your porch, drunk of course, banging down your door at 2 AM because he came to the wrong house and thought he was breaking his own door in (I responded to exactly that call once to find a citizen in his BVDs holding said drunk at gunpoint), that is not going to be the same thing as Joe Dokes the home invader breaking in with a gun in his hand.

In California, again my opinion here, we have a responsibility to assess the situation before us and respond appropriately to that particular situation. In Texas, and other states, that responsibility ends when the door comes in. There the actor, be it Joe Dokes or the town drunk, is going to get shot at.

tiki

07-22-2011 11:37 AM

Quote:

Originally Posted by spalterego
(Post 6812127)

If they are in your "hose" in the middle of the night, I suggest calling a urologist.

What if your hose is in them?

Vipersx911

07-22-2011 12:21 PM

Quote:

Originally Posted by BigDogatPlay
(Post 6819472)

The statute combined with the jury instruction, and the case law, make the case IMO that California already has close to a Castle Doctrine. It's just not called that. The key element, particularly in the jury instruction, is the test of reasonableness. Was the level of force reasonable to overcome the scale of the threat to life and limb.

A person can use lethal force to defend their property under the law. But if it's the town drunk on your porch, drunk of course, banging down your door at 2 AM because he came to the wrong house and thought he was breaking his own door in (I responded to exactly that call once to find a citizen in his BVDs holding said drunk at gunpoint), that is not going to be the same thing as Joe Dokes the home invader breaking in with a gun in his hand.

In California, again my opinion here, we have a responsibility to assess the situation before us and respond appropriately to that particular situation. In Texas, and other states, that responsibility ends when the door comes in. There the actor, be it Joe Dokes or the town drunk, is going to get shot at.

I take it from your response you are LEO, appreciate the insight. I have read the law but haven't had time to cover the case laws yet. Appreciate the valuable info.

Sent from my Droid using Tapatalk

sreiter

07-22-2011 6:51 PM

Quote:

Originally Posted by BigDogatPlay
(Post 6819472)

The statute combined with the jury instruction, and the case law, make the case IMO that California already has close to a Castle Doctrine. It's just not called that. The key element, particularly in the jury instruction, is the test of reasonableness. Was the level of force reasonable to overcome the scale of the threat to life and limb.

A person can use lethal force to defend their property under the law. But if it's the town drunk on your porch, drunk of course, banging down your door at 2 AM because he came to the wrong house and thought he was breaking his own door in (I responded to exactly that call once to find a citizen in his BVDs holding said drunk at gunpoint), that is not going to be the same thing as Joe Dokes the home invader breaking in with a gun in his hand.

In California, again my opinion here, we have a responsibility to assess the situation before us and respond appropriately to that particular situation. In Texas, and other states, that responsibility ends when the door comes in. There the actor, be it Joe Dokes or the town drunk, is going to get shot at.

IIRC - in Co. A guy was banging on his neighbors door, yelling threats. The man inside never opened the door. shotgun blast through the door. charges were never even considered being filed.

stix213

07-22-2011 6:58 PM

Quote:

Originally Posted by BigDogatPlay
(Post 6819472)

A person can use lethal force to defend their property under the law. But if it's the town drunk on your porch, drunk of course, banging down your door at 2 AM because he came to the wrong house and thought he was breaking his own door in (I responded to exactly that call once to find a citizen in his BVDs holding said drunk at gunpoint), that is not going to be the same thing as Joe Dokes the home invader breaking in with a gun in his hand.

I'm curious, did this citizen holding the drunk at gunpoint (sounds like he did not actually fire from the short description) get into any legal trouble in this situation? It sounds like a reasonable response to me to have the firearm available and ready, while not going as far to fire on the drunk when they weren't yet threatening the life of the person living there.

snobord99

07-22-2011 8:53 PM

I think pretty much everyone has missed an important part of the statute (probably because OP didn't highlight it).

Quote:

CALIFORNIA CODES
PENAL CODE
SECTION 187-199

197. Homicide is also justifiable when committed by any person in
any of the following cases:
1. When resisting any attempt to murder any person, or to commit a
felony, or to do some great bodily injury upon any person; or,
2. When committed in defense of habitation, property, or person,against one who manifestly intends or endeavors, by violence or
surprise, to commit a felony, or against one who manifestly intends
and endeavors, in a violent, riotous or tumultuous manner, to enter
the habitation of another for the purpose of offering violence to any
person therein; or,

monk

07-22-2011 9:17 PM

Quote:

Originally Posted by snobord99
(Post 6822544)

I think pretty much everyone has missed an important part of the statute (probably because OP didn't highlight it).

What's the definition of surprise then? Is it that they sneak up behind you? Or is it that you're surprised to be woken up at 2AM by rustling noises?

I'm curious to know on that drunk as well. Can you be in violation of the law if you hold a person at gunpoint, such as the town drunk, while police arrive? Could that constitute a citizen's arrest or would that be kidnapping charges?

jeep7081

07-22-2011 9:37 PM

Quote:

Originally Posted by jl123
(Post 6809205)

You can't be held criminally liable in CA for shooting someone if you are in reasonable fear for your life (ie someone is in your house), but we are not offered protections against cases brought in civil court (lawsuits).

Basically you can shoot a guy in your house (without trying to retreat) and the cops would be fine with it (in theory), but the scum bag's family could sue you. even if you win, it could get expensive.

Not true. Two cases in San Bernardino where home owner was woken up by a noise in the house. He grabbed his gun, and went down stairs. Found the suspect taking his tv (it was in his hand). Home owner fired two shots. Dropped the suspect. Home owner called 911 and was arrested shortly after! DA took the case. DA said the homeowner should have returned up the stairs with his gun and called 911. The suspect only wanted the TV :eek::rolleyes:

jeep7081

07-22-2011 9:40 PM

Quote:

Originally Posted by monk
(Post 6822681)

What's the definition of surprise then? Is it that they sneak up behind you? Or is it that you're surprised to be woken up at 2AM by rustling noises?

I'm curious to know on that drunk as well. Can you be in violation of the law if you hold a person at gunpoint, such as the town drunk, while police arrive? Could that constitute a citizen's arrest or would that be kidnapping charges?

Hey Jeep, there must be more to that story.
Such as when the homeowner was questioned by Police, he admitted that at the time of the shooting he was not in reasonable fear for his life, but shot anyways.
Now if he, or you did this, then that would not be the lawful use of lethal force.
There must be more to those examples you are thinking of.
I would suggest if the homeowner was charged with anything, it was because the level of force he/she used at the time, due to their own statements, was found to be unreasonable.
Can you please link them. It would help if you are going to cite them...Thanks.

monk

07-22-2011 10:15 PM

Possible the thief had their back turned toward the home owner.

BigDogatPlay

07-23-2011 10:57 AM

Quote:

Originally Posted by stix213
(Post 6821834)

I'm curious, did this citizen holding the drunk at gunpoint (sounds like he did not actually fire from the short description) get into any legal trouble in this situation?

No, he did not fire and no, he had no legal issues post event. Not to be flip but for the sake of the discussion, what would I have arrested him for? He was still inside his own house, the doofus drunk had broken out a window next to the door and was trying to enter.

Quote:

It sounds like a reasonable response to me to have the firearm available and ready, while not going as far to fire on the drunk when they weren't yet threatening the life of the person living there.

That's the way we saw it as cops on the scene. His response was reasonable. If he had made holes in the drunk, absent any overt threat or action of violence that would have been a different story for sure.

Quote:

I'm curious to know on that drunk as well. Can you be in violation of the law if you hold a person at gunpoint, such as the town drunk, while police arrive? Could that constitute a citizen's arrest or would that be kidnapping charges?

Kidnapping requires movement. You would, perhaps, be thinking of a false imprisonment. It wouldn't have been one of those either. The citizen defending his home, essentially, concluded that his home was being forcibly entered in the middle of the night by someone who he did not know. He took a defensive posture while his wife called us. Had the drunk been sober we almost certainly would have arrested him for burglary, as it was he got his sober up time at county and a lesson learned.

The law in Colorado, IIRC it was called in some circles 'Make My Day' when it passed, Texas and other states where breathing free air with no evil intent on the wrong porch can get you killed are, IMO, something of an extreme. While California law is often as clear as mud, and there are the vagaries of prosecutors to consider, it still goes a long way to support the law abiding who are forced to defend themselves in their homes.

snobord99

07-23-2011 11:00 AM

Quote:

Originally Posted by monk
(Post 6822681)

What's the definition of surprise then? Is it that they sneak up behind you? Or is it that you're surprised to be woken up at 2AM by rustling noises?

I'm curious to know on that drunk as well. Can you be in violation of the law if you hold a person at gunpoint, such as the town drunk, while police arrive? Could that constitute a citizen's arrest or would that be kidnapping charges?

As to the question of the drunk, there certainly are going to be cases where you are legally allowed to hold someone at gunpoint while waiting for the police arrive, but I think the facts as you indicated thus far would indicate that you are violating a law and have no defense. I'm fairly confident you cannot hold someone at gunpoint just because they're drunk. If there was something else (for example, the drunk's also in you house), then perhaps you could.

I didn't see any cases defining surprise (but I didn't look that hard). Copy and paste of a few cases/summaries:

To justify homicide, it must appear that degree of resistance on part of slayer was not clearly disproportionate to injury threatened. People v. Lopez (1962, Cal App 2d Dist) 205 Cal App 2d 807

An attempt to commit a violent injury on another person is justifiable if it occurs under the circumstances specified in Pen Code, § 197, relating to justifiable homicide. People v. Ceballos (1974) 12 Cal 3d 470

By its terms, Pen Code, § 197, subd 1, appears to permit killing to prevent any "felony," but in view of the large number of felonies which exist today and the inclusion of many which do not involve a danger of serious bodily harm, a literal reading of the provision is undesirable. Rather, the felonies contemplated by the provision are limited to atrocious crimes attempted to be committed by force. People v. Ceballos (1974) 12 Cal 3d 470

The "felony" contemplated by Pen Code, § 197, subd 2, in declaring that a homicide is justifiable if committed against a person who endeavors "by violence or surprise, to commit a felony," is limited to forcible and atrocious crimes. People v. Ceballos (1974) 12 Cal 3d 470

In a wrongful death action arising from defendant's shooting of plaintiff's son while the son was attempting to escape after defendant discovered him burglarizing defendant's residence, the trial court erred in denying defendant summary judgment. In the related criminal proceeding, defendant's act had been determined to be justifiable pursuant to Pen C § 197, subd. (4) (homicide committed while lawfully attempting to apprehend person for committing felony). An act resulting in justifiable homicide as defined by Pen C § 197 is in legal effect a privileged act. A privileged act is generally defined as one that would ordinarily be tortious, but which, under the circumstances does not subject the actor to liability. Thus, since defendant's conduct was privileged, plaintiff's action was barred under either a negligence or intentional tort theory. Gilmore v. Superior Court (1991, Cal App 3d Dist) 230 Cal App 3d 416

For a killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend. If the belief subjectively exists but is objectively unreasonable, there is "imperfect self-defense," i.e., the defendant is deemed to have acted without malice and cannot be convicted of murder, but can be convicted of manslaughter. To constitute "perfect self-defense," i.e., to exonerate the person completely, the belief must also be objectively reasonable. The circumstances must be sufficient to excite the fears of a reasonable person (Pen C §§ 197, subds. 2, 3; 198). Moreover, for either perfect or imperfect self-defense, the fear must be of imminent harm. The jury judges reasonableness from the point of view of a reasonable person in the position of the defendant. To do this, it must consider all the facts and circumstances in determining whether the defendant acted in a manner in which a reasonable person would act in protecting his or her own life or bodily safety. A defendant is entitled to have a jury take into consideration all the elements in the case that might be expected to operate on his or her mind. People v. Humphrey (1996) 13 Cal 4th 1073